What is a separation agreement?

Divorce | 9 Sep 2020 1

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A separation agreement is a written contract made between couples if their relationship breaks down, which sets out how their joint assets and responsibilities will be divided between them.  

Whilst not legally binding as long as it is drawn up properly it is a formal contract that can be challenged in court. 

Why would I need a separation agreement? 

There can be several reasons why a couple may need to create a separation agreement, for example: 

  • You want to separate but don’t want the finality of divorce or a dissolved civil partnership.

  • You don’t wish to divorce for religious reasons.

  • You can’t get a divorce or have your civil partnership dissolved because you haven’t been married for 12 months.

What should a separation agreement include? 

The agreement can include any information relevant to both parties at the end of the relationship. 

For example, 

  • What will happen to the family home? Who will live there? Will it be sold? How will the mortgage/bills be paid? How will the equity be divided?

  • What will happen to any savings and inheritance? 

  • How will you deal with any debts? 

  • Will either of you get any maintenance and for how long? 

  • What are the arrangements for the children, including where they will live, how they will spend their time with both parents, and how will their financial needs be met?

  • How will any personal property be divided, for example, cars, furniture, etc.

  • It can also make provision for there to be a divorce in the future when both parties are ready.

What are the advantages of getting a separation agreement? 

There are three main advantages of getting a separation agreement.

First, it gives you time for consideration and the financial stability to think before taking the important decision to divorce. 

Second, they provide the legal certainty needed to protect both parties financially as it can be challenging to prove the terms of any verbal agreement.

For example, if your partner refused to honour a verbal agreement, it would be difficult to enforce or take any type of legal action. However, a valid separation agreement, signed by both of you, would be recognised as a contract by most courts. 

And thirdly, having a signed agreement in place can help reduce tension, avoid expensive court costs and help resolve issues more efficiently.  It can also help speed up the divorce process if arrangements have been agreed in advance,  helping to save on your legal costs later.  

Is a separation agreement legally binding? 

Technically no, a separation agreement is a formal legal document, but it is not a court order. 

Instead, it is a contract that can be challenged in a court provided it has been written correctly by a family lawyer and under certain conditions including, 

  • Entered into voluntarily by both parties, with the benefit of legal advice

  • Full financial disclosure of both parties

  • The terms in the agreement are fair and reasonable. 

It is therefore very important that you both receive separate and independent legal advice before signing the agreement as it may be needed in evidence should the matter go to court.  

A separation agreement can often be made into a consent order later in the divorce process by your solicitor which will then make it legally binding.  

Do I need a solicitor to get a separation agreement? 

If you or your partner are struggling to agree, the assistance of a family lawyer can help with the negotiation process.

They can carefully assess the terms within the agreement to determine whether or not you are both being represented accurately and justly.  

There may be important factors that you had not considered which your lawyer will be able to point out and help avoid expensive conflicts in the future.  

Once the terms have been settled, a solicitor will draft the agreement and negotiate with the other parties solicitor until the content is agreed. 

Each party must have independent legal advice from separate solicitors on the details of the agreement.

What happens if I’ve got a separation agreement and then get divorced? 

If you and your partner subsequently agree to a divorce, then provided that the separation agreement has been drawn up correctly and is reasonable, a court will be unlikely to interfere with it.  

For a separation agreement to be upheld as part of the divorce proceedings, it would have to fulfil these conditions: 

  • Both parties took legal advice before entering the agreement. 

  • Both parties’ circumstances are similar to when the agreement was made. 

  • Both parties made full and frank financial disclosure. 

The terms of your separation agreement can be transferred into a financial consent order by your lawyer. 

Your separation agreement will be appended to the order and will be endorsed by the Court.  

Get in touch

If you wish to make a separation agreement or you would like further advice, please do contact our Client Care Team here to speak to one of our specialist divorce lawyers.

 

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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Comment(1)

  1. Heulwen Smith says:

    Friends going to divorce. Wife has flat which she rents out to cover her mortgage on it. She bought it before the marriage and husband thinks he cannot claim half share. I think he can- judge awarded 50/50 on everything, but husband has not mentioned the flat.

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